MacIntyre v. McLean

Gilbert, J. 1. One assignment of error is as follows: “Tlie court erred in holding that item three of the will vested in Miss Cynthia McLean the property therein described upon the death of the testator, but on the contrary, the evidence showing that Miss Cynthia McLean, the devisee, died before the execution of the will and before the legacy was assented to, said legacy lapsed, and the property described therein descended to the heirs and became a part of the undevised estate of [281] K. T. McLean, deceased.” Held, that the legacy in item three of the will did not lapse. “A will takes effect instantly upon the death of the testator, however long the probate may be postponed.” Civil Code (1910), § 3831. The legatee therein died subsequently to the death of the testator, but within twelve months thereafter. The word “executed” in the phrase “when the will is executed,” as used in the Civil Code (1910), § 3906, providing that “if a legatee dies before the testator, or if dead when the will is executed,” etc., is synonymous with the word “made” (signing, attestation, etc., as provided for in the Civil Code (1910), § 3846). It has no reference to the carrying out by the executor of the provisions of the will. Compare Cheney v. Selman, 71 Ga. 384; Tolbert v. Burns, 82 Ga. 213 (8 S. E. 79). There are no words in the will fixing a different time for the vesting of the legacy. 2. The second assignment of error is as follows: “The court erred in deciding that the mortgage indebtedness of K. T. McLean is subject to an equitable distribution in accordance with the terms of the decree, because the property devised by K. T. McLean was only his equity of redemption, and that having been sold and the purchaser having assumed the indebtedness, said mortgage indebtedness could not be classified as an indebtedness of It T. McLean chargeable against his heirs.” Reid, that the court did not err as contended. The fact that after the death of Cynthia McLean the property devised to her was sold, the purchasers assuming the mortgage debt secured by the property, does not affect the legal status that existed at the time of vesting. Her interests vested on the death of the testator. The assumption of such debts by the purchaser did not relieve the executors of the testator from the obligation to pay the debts of the estate as provided for in the second item of the will. {a) The decree of the court, to the effect that “the mortgage indebtedness of K. T. McLean is subject to an equitable distribution,” properly construed, does not include the indebtedness not incurred by K. T. McLean, but which was existing as a lien on property, an interest in which he had inherited subject to such indebtedness. 3. The third assignment of error is as follows: “The court erred in the rulings contained in the following paragraph of his decree, to wit: ‘It is therefore decreed that the executors sell the property devised in item four of the will, and that the proceeds arising from the sale of the property described in item three of the will be paid over to the executors by the defendant E. K. McLean, administrator, and that the debts of the said K. T. McLean be paid pro rata from the proceeds of the sale of said two devises, and from the devise in item three such sum that remains in hand after the deduction of the pro rata amount of expenses of administration, costs of court, and attorney’s fees shall be paid over to the administrator; and that after the payment of debts of K. T. McLean pro rata, and the payment of expenses of administration, costs of court, and attorney’s fees pro rata, from the proceeds of the property in item four of the will, one fourth of such sum as remains shall be held by the executors for the care and improvement of the family cemetery known as the Mitchell Cemetery, and the remaining three fourths of said sum shall revert to the estate of the said K. T. McLean for distribution among his heirs; the court holding that [282] the devise in item four was sentimental and made for the purpose and intention of preserving the old home of testator’s wife, and the testamentary scheme has failed because of failure of the testator to make provision for his debts, and his intention is incapable of execution.’ Eirst, in holding' that the property devised by item four of the will should be sold and the proceeds from the sale be used pro rata for the payment of the debts of II. T. McLean, because, the devise contained in item three of the will having lapsed by reason of the death of the devisee before the execution of the will, the residuary property not disposed of by special or general legacy, and the proceeds of that property, should be exhausted in the payment of debts before proceeding against the special legacy contained in item four of the will. Second, in holding that one fourth of the proceeds of the sale of the property described in item four of the will, after the payment of debts and the cost of administration, should be held by the executors for the care and improvement of the family cemetery known as the Mitchell Cemetery, and the remaining three fourths of said sum should revert to the estate of II. T. McLean for distribution among his heirs, because if said devise contained in item four of said will falls for the reason set forth in said decree, no part of said devise remains of force, and all of the proceeds of the sale of said property should go’ into the estate undevised. Third, in holding that the devise in item four was sentimental and made for the purpose and intention of preserving the old home of the testator’s wife, and the testamentary scheme had failed, because of the failure of the testator to make provision for his debts, and his intention is incapable of execution, because, even if the devise in item four was sentimental and made for the purpose and intention of preserving the old home of the testator’s wife, said testamentary scheme has not failed, because the debts of the testator could be paid out of the proceeds of the personal property, the farm, the residence, and the store, all of which were attempted to be devised by item three of the will; and which item having lapsed because of the death of the devisee prior to the execution of the will and the assent of the executors to said legacy, said property and the proceeds thereof went back into the estate and were subject to the payment of the debts, and item four constituted a specific legacy and was not subject to the payment of the debts until after the general estate was exhausted, and there was ample money derived from the sale of other property to pay all the debts; and because, furthermore, if by the devise provided for in item three of the will the title to the property vested in Miss Cynthia E. McLean, the testamentary scheme could be carried out and the intention of the testator preserved by giving the legatees under item four of the will the opportunity to pay into court the pro rata part of the debts and preserve intact the property devised to them by item four of said will, or by directing that the property devised by item four of the will should be sold, in order that the money derived therefrom could be used in so far as necessary in the payment of its pro rata part of the debts and expenses of administration, and the residue, if any, to be paid over to the devisees under said item four, subject to the charge contained in item four of said will for the preservation and protection and care of the family cemetery.” Held, that it was [283] error to hold that item four of the will lapsed because of the failure to-provide for the payment of debts, and to order the property therein described to be sold for the purpose of paying debts. All of the properties described in the will are subject to the payment of the debts of the testator, and the legatees took in accordance with the will, subject to such debts. The legatees should have been afforded the opportunity to pay their pro rata share of the debts on an equitable basis, and to receive their respective legacies free therefrom; or all of the property, or a proportionate amount of the property upon a pro rata basis, should be sold to pay the debts, the remainder to go to the legatees, as provided in the will. No. 5071. May 14, 1926. 4. The preceding headnotes deal with all of the assignments of error made in the bill of exceptions. Judgment reversed. All the Justices concur. Branch & Snow, for plaintiffs. Titus & Dehle, for defendant.